Sorsby v. State, 17803

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation624 S.W.2d 227
Docket NumberNo. 17803,17803
PartiesJ. B. SORSBY et al., Appellants, v. The STATE of Texas, Appellee. (1st Dist.)
Decision Date30 July 1981

Page 227

624 S.W.2d 227
J. B. SORSBY et al., Appellants,
The STATE of Texas, Appellee.
No. 17803.
Court of Civil Appeals of Texas, Houston (1st Dist.)
July 30, 1981.

Page 230

W. H. Betts, Hempstead, for appellants.

Mark White, J. Milton Richardson and Sharon Gillespie, Austin, for appellee.

Before COLEMAN, C. J., and PEDEN and SMITH, JJ.

PEDEN, Justice.

J. B. Sorsby, Jr., J. B. Sorsby, Sr., Felman B. Sorsby, and William Frederick Sorsby appeal from a summary judgment awarding to the State of Texas title to and possession of 90.44 acres of land (sometimes called 110 acres) in the Solomon Smith Survey in Waller County. The State, on behalf of the Board of Directors of Texas A & M University, the Commissioner of the General Land Office, and the Public Free School Fund, brought this suit in statutory trespass to try title. The State's allegation of possession of the tract in question on February 1, 1951, was a fictional pleading; the State was not in actual possession at that time. The Sorsbys answered with a plea of not guilty and specially alleged, among other defenses, possession for approximately ninety years by themselves and their predecessors in title without claim of right or demand of possession by the State.

The summary judgment evidence shows that title to the land in question was conveyed away by the State in 1854 and was conveyed back to the State in 1877.

Both parties filed motions for summary judgment; the trial court granted the State's motion and overruled the Sorsbys'. In the appellants' first twelve points of error (Section I of their brief) they argue that the trial court erred in granting the State's motion for summary judgment, and in Section II they complain about the overruling of their motion. Although denial of a motion for summary judgment is usually not appealable, Ackerman v. Vordenbaum, 403 S.W.2d 362 (Tex.1966), appellate review of such denial is available where, as here, both parties have moved for summary judgment and the trial court has granted one motion and denied the other, Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

When both plaintiff's and defendants' motions for summary judgment are properly before the trial court, all evidence accompanying both motions should be considered in deciding them. DeBord v. Muller, 446 S.W.2d 299, 301 (Tex.1969). In examining the evidence, we utilize the same standard that the trial court used to determine whether the summary judgment proof establishes as a matter of law that no genuine issue of fact exists as to one or more of the essential elements of plaintiff's cause of action. Daniels v. Shop Rite Foods, Inc., 502 S.W.2d 894 (Tex.Civ.App.1973, writ ref'd n. r. e.). In discharging their burden of demonstrating that the trial court's decision was erroneous because the appellee failed to establish as a matter of law the absence of an issue of material fact, the appellants must point out any fact questions which allegedly existed on material issues, since the appellate court is not required

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to search the record for a possible fact issue. Daniels, supra. We will, however, indulge every reasonable intendment under the summary judgment proof in favor of the persons against whom the judgment was granted. Tanner v. Doty, 311 S.W.2d 508, 509 (Tex.Civ.App.1958, writ ref'd n. r. e.).

We review the proof of the State's claim of title. According to a recitation in a patent issued by the State on November 17, 1854, to the heirs of Solomon Smith, the Board of Land Commissioners of Grimes County had issued unconditional Certificate No. 51 on February 16, 1852, to 320 acres of land in Austin County (described by metes and bounds).

On July 9, 1852, the "only children and heirs of Solomon Smith" conveyed to his widow, Emily Smith, by general warranty deed "unconditional certificate" number 51 for 640 acres of land, together with all the land which might be surveyed and located under and by virtue of such certificate. There were two Solomon Smith surveys patented to the heirs of Solomon Smith, and patent number 726 for 320 acres gives a metes and bounds description that includes the tract which is the subject of this suit. The 1852 deed to Emily Smith was duly executed, acknowledged, and recorded in accordance with the laws in effect at the time of the conveyance.

Emily Smith deeded the same 640 acres covered by certificate number 51 to R. B. Hannay on August 1, 1853, and Mr. Hannay conveyed the same two Solomon Smith 320 acre tracts to H. L. Rankin on November 5, 1854. Mr. Rankin conveyed the land back to Mr. Hannay two years later, and in 1856 Mr. Hannay conveyed the 320 acres tract which includes the 90.44 acres in question in this case to R. J. Swearingen and Jared E. Kirby. When Jared Kirby died, his widow, Helen Kirby, was appointed administratrix of his estate, and she petitioned the district court of Austin County to partition between herself and the Jared Kirby estate the called 220 acres which included the subject tract. Several documents in the summary judgment evidence show that commissioners were appointed to partition such land, that Helen Kirby was alloted the called 110 acres which include the subject tract, and that portions of the 110 acres allotted to the Jared Kirby estate were sold by it.

On November 14, 1874 J. T. Swearingen, et al., children of R. J. Swearingen and his wife, both of whom were then deceased, conveyed to their sister, Helen Kirby, "320 Acres known as the Solomon Smith Three hundred and twenty acre survey bounded N by the J. F. Martin 640 Survey-E by a survey made for NW Bush South by 640 Survey patented to John Law & West by a 320 Survey Patented to D. Boon." On October 18, 1977, Helen Kirby et al., conveyed to R. B. Hubbard, Governor of the State of Texas, and his successors in office, several parcels of land, one of which is the tract in question.

Appellants' claim to the subject land is based on limitation and juridical possession. No common source of title is involved.

The appellants assert that the State has failed to establish its title as a matter of law, that genuine issues of material fact were presented, that the trial court erred in finding and relying upon presumptions that the State accepted Helen Kirby's proffered gift of the subject lands for a specified use and that the court erred in entering a judgment approving the commissioners' report confirming the partition of lands between Helen Kirby in her individual capacity and in her capacity as administratrix of the Jared Kirby estate.

Appellants assert that the description in the August 26, 1856, deed from R. B. Hannay to R. J. Swearingen and Jared E. Kirby does not encompass all of the subject land and that the deed from Helen Kirby and P. H. Swearingen to Governor Hubbard passed no title to the State. There were two instruments executed by R. B. Hannay involving the Solomon Smith and John Laws surveys. The first was an agreement dated July 12, 1856, between R. B. Hannay and R. J. Swearingen reciting that on that day Hannay had sold to Swearingen for $5,960 three specified tracts, including 320 acres of land granted to the heirs of S.

Page 232

Smith Decd" at one dollar per acre. The agreement recited that the lands were to be surveyed and that the agreed total price would be adjusted if the acreage was found to be different from that recited. The first payment was to be made on or before January 1, 1857, at which time Hannay agreed to furnish to Swearingen "a good and sufficient title...."

The Hannay deed dated August 26, 1856, names R. J. Swearingen and J. E. Kirby as grantees and contains a metes and bounds description of the land previously designated. That metes and bounds description is identical to the field note description of the Solomon Smith and John Laws Surveys which is attached to the John Laws Survey Notes and which is covered by both Hannay instruments. Although the patented plat and field notes of the 320 acres of the Solomon Smith survey differ somewhat from the metes and bounds description in the Hannay deed, the difference is reconciled and understood through reference to the John Laws Survey plat which existed when the conveyance was made. When the two instruments are read together, they provide a legally sufficient description of the Solomon Smith survey, including the subject tract, and are sufficient to pass title to the entire survey.

The Sorsbys next urge that even if the land here in question was sufficiently identified in the deed from Hannay to Swearingen and Kirby, there was no summary judgment proof that the subsequent deed of October 18, 1877, from Helen Kirby and R. J. Swearingen to Governor Hubbard effected a transfer of title to the subject land to the State because: (1) the land was insufficiently described in the deed from Helen Kirby et al. to Governor Hubbard; (2) there was no summary judgment proof that the State accepted the donation of the subject land from Helen Kirby et al.; (3) if the State could and did accept the Kirby gift, the title to the subject land was lost when it was not used for the purpose specified in the October 18, 1877, deed; (4) the partition between Helen Kirby and the estate of Jared Kirby, which is part of the State's chain of title and is relied upon for the sufficiency of description, was void and should not have been considered as summary judgment proof because (i) the county court of Austin County lacked subject matter jurisdiction; (ii) the commissioners' report of the partition never was approved or confirmed by the court; (iii) there was a misjoinder of parties in the partition action,...

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